The Federal Bureau of Prisons (BOP) began 2013 with an adverse ruling from the U.S. District Court for the District of Oregon, after the BOP had spent several years refusing to disclose allegedly confidential information that was, in fact, already public.

In May 2009, Stephen Raher, then a law student and former co-coordinator of the Colorado Criminal Justice Reform Coalition, filed a lawsuit against the BOP that alleged the agency had improperly withheld documents requested under the Freedom of Information Act (FOIA). Raher had requested various records concerning the BOP’s contracts with private prison companies, including the contracts themselves, contractor proposals and internal BOP emails.

Under the BOP contracts, private prison companies are paid a designated amount per day for each prisoner they house (“per diem” pricing). The BOP initially argued that it could not release the contractors’ proposals because they contained confidential commercial information and security details. BOP officials also claimed they could not release the number of beds they had contracted for, or the per diem prices.

The BOP argued that a wide variety of information concerning private prison operations was confidential commercial information, protected by FOIA’s Exemption 4 (5 U.S.C. § 552(b)(4)), because it revealed proprietary details about how companies like Corrections Corporation of America (CCA) and GEO Group operate their facilities. The BOP supported its argument with testimony from Matthew Nace, chief of the BOP’s acquisition office, who stated that per diem prices were confidential and could not be released under FOIA.

In response, Raher presented expert testimony from a professional economist. The economist described the business model of the private prison industry and explained why release of the contractor proposals and pricing information would not cause a substantial competitive disadvantage to private prison firms.

In 2011, U.S. Magistrate Judge Janice Stewart ruled that general private prison operating information and the number of contracted beds could not be withheld under Exemption 4. [See: PLN, Dec. 2011, p.36]. She further held that the court would need further evidence before it could rule on whether the per diem pricing information was exempt from disclosure.

Following that decision, Raher discovered two important pieces of information. First, Reeves County, Texas (the owner and nominal contractor for a private prison that is actually operated by GEO Group) had published the per diem prices from its BOP contract.

Second, Raher obtained several internal emails from Nace. In 2006, following the award of one of the private prison contracts, Nace had written to a superior and other BOP officials, informing them of the per diem prices and stating that the prices could be included in a press release because they were “public information.”

In light of Reeves County’s publication of its per diem pricing, the BOP voluntarily released the per diem prices for all of the contracts included in Raher’s FOIA request, but refused to compensate him for the cost of his expert witness. Raher then moved for an interim fee award of $21,393, citing the district court’s 2011 ruling in his favor on some of the records he had requested, the BOP’s voluntary release of the per diem pricing and Nace’s misleading statements in light of his 2006 emails.

The court granted Raher’s motion on January 2, 2013, finding that he had “substantially prevailed” and that the BOP “did not have a reasonable basis for withholding documents under Exemption 4.” Judge Stewart wrote that, “for whatever reason, BOP apparently relied on its two primary submitters (CCA and GEO Group) to supply reasons for withholding information under Exemption 4 and never thoughtfully re-examined its position in response to the evidence and arguments made by Raher.”

Additionally, the district court concluded that a fee award was justified because the release of information about private prison operations benefited the public, and because the BOP had prolonged the litigation by being “slow to comply with this court’s orders and often unable to answer questions posed during court-ordered conferences.” The court noted that “Raher also has consistently complained that BOP either has not answered his attempts to negotiate or has ignored his informal requests for information (necessitating more cumbersome formal discovery).”

According to Raher, the BOP has released the majority of the documents he requested and he continues to negotiate with BOP officials over some emails that were redacted. “There are only a few issues remaining in the case,” he said, “but the fee award was a major victory – the court has told the BOP that if it takes unreasonable positions to frustrate people who file FOIA requests, there will be consequences.” See: Raher v. Federal Bureau of Prisons, U.S.D.C. (D. Ore.), Case No. 3:09-cv-00526-ST.

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